Title

September 25, 2017

Background:

In the early and mid 2000’s two cases, Solid Waste Agency of
Northern Cook County v. US Army Corps of Engineers 531 US 159
(2001) and Rapanos v. US 547 US 715 (2006), were
heard and decided by the United States Supreme Court. These two
cases had a major impact on the definition of the term “Waters of
the United States” as used to implement and enforce the Federal
Clean Water Act. The central issue in these cases was how the
Army Corps

would treat non-navigable water ways and wetlands. Prior these
rulings the Army Corps of Engineers, in their implementation of
the Clean Water Act, began to require permits to dredge and fill
bodies of water including wetlands and hydrologically isolated
bodies including seasonal vernal pools and bodies of water used
by birds for migration. The Supreme Court, in both cases, limited
the scope of the Army Corps jurisdiction and also created a
significant nexus test to determine whether or not a wetland was
to be considered a “Water of the United States”. The Court’s
decisions narrowing the scope of the Clean Water Act in a way
that could possibly exclude certain wetlands prompted California
to develop its own definition of, and permitting procedures for,
wetlands to considered “Waters of the State” in order to help
protect California’s diminishing wetlands. The State Water Board
began this policy development process in 2007 and that process of
adopting that policy is nearing completion. In 2015,the EPA and
Army Corps
released the Clean